Loading paragraph markers

D.W. v. Y.Y., 2018 BCPC 37 (CanLII)

PDF

Date:

2018-02-16

File number:

17-29523

Citation:

D.W. v. Y.Y., 2018 BCPC 37 (CanLII), <https://canlii.ca/t/hqhp7>, retrieved on 2024-04-26

Citation:	D.W. v. Y.Y.
	2018 BCPC 37
Date:		20180216
File No:		17-29523
Registry:		Vancouver

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

BETWEEN:

D.W.

APPLICANT

AND:

Y.Y.

RESPONDENT

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE W. LEE

Appearing in person:	D.W.
Counsel for the Respondent:	G. Vlug
Place of Hearing:	Vancouver, B.C.
Date of Hearing:	February 6 & 7, 2018
Date of Judgment:	February 16, 2018

Corrigenda were released by the court on March 15, 2018 and April 26. The corrections have been made to the text and the Corrigenda are appended to this document.

INTRODUCTION

[1] This matter deals with two children, J.S.Y., born [omitted for publication], and E.J.J.Y., born [omitted for publication]. D.W. is the mother and Y.Y. is the father of these two daughters.

[2] Both parties testified through Cantonese interpreters. I believe their understanding of the English language is limited. Because of that, I have tried to avoid using any technical legal terms in writing this decision. I expect that this decision will be translated to the parties and I want to help make that process as easy as possible.

[3] This case deals with issues about guardianship, parental responsibilities and parenting time, as well as child support.

[4] In simple terms, “guardianship” is a position that a person may have that allows that person to have “parental responsibilities” and “parenting time” with children.

[5] “Parental responsibilities” includes many matters, but basically it is the right and obligation to decide how a child will be raised.

[6] “Parenting time” is simply the time a child spends with a guardian.

THE EVIDENCE

[7] D.W. and Y.Y. married in China on June 19, 2002.

[8] Their first daughter J.S.Y. was born on [omitted for publication] in Guangzhou, China.

[9] Sometime in 2003 or 2004, D.W., Y.Y., and J.S.Y. came to Canada. There were difficulties adjusting to Canada. Y.Y. said the family returned to China and J.S.Y. was left in the care of D.W.’s parents. D.W. and Y.Y. then returned to Canada. Y.Y. said that D.W. was still having difficulties adjusting to Canada. As such, sometime in 2004, D.W. and Y.Y. returned to China to live in Guangzhou, China with J.S.Y.

[10] D.W. said that the family returned to Canada in October 2006. When questioned further by Y.Y.’s lawyer, D.W. said that when the family was living in Guangzhou, both Y.Y.’s parents and D.W.’s parents also lived with them. Some unexplained issues arose and D.W. and her parents left to go to Yichun, China. The child J.S.Y. remained with Y.Y. and his parents.

[11] At first, D.W. told me that she returned to Guangzhou to live with Y.Y. and J.S.Y. after a few months. However, when D.W. was asked about this by Y.Y.’s lawyer, D.W. agreed that she lived in Beijing from 2005 to 2006.

[12] Y.Y. said that during this time, he looked after J.S.Y. with the help of his mother, M.Q.L. M.Q.L. also said that for almost two years Y.Y. looked after J.S.Y. with her assistance.

[13] Y.Y. broke his finger in 2006 and needed help to care for J.S.Y. He contacted D.W. and asked her to return to the family in Guangzhou. She did.

[14] Prior to D.W.’s return, Y.Y. obtained a B.C. Supreme Court order for a divorce from D.W. which was dated January 3, 2006. D.W. was shown a copy of this court order at the hearing. She said it was the first time she ever saw the divorce order and she did not realize that she and Y.Y. were divorced.

[15] Y.Y. said that when he applied for a divorce he was not aware of where D.W. was. He said that when he and D.W. returned to Canada in 2006, he “indicated” to her that they were divorced. Y.Y. did not explain what he meant by this. It was clear that D.W. was shocked to learn of the divorce.

[16] It is important to know that the divorce has no bearing in this matter. Y.Y. and D.W. resumed their relationship afterwards and went on to have a second child. The legal marriage may have ended but Y.Y. and D.W. then resumed living together as husband and wife in what can be described as a “common law marriage”.

[17] D.W. said the family returned to Canada in October 2006 and lived in a home near East 41st Avenue and Victoria Drive in Vancouver, B.C.

[18] At the time, D.W. thought that Y.Y. was doing renovation work and smoothing stones in a factory. She thought he was working every day and earning somewhere around $11.00 to $12.00 an hour. D.W. had very little information about Y.Y.’s work history or his earnings.

[19] D.W. and Y.Y.’s second child E.J.J.Y. was born on [omitted for publication].

[20] When E.J.J.Y. was two months old, the family moved to a new home at 73rd Avenue and Worthington Place in Vancouver, B.C.

[21] D.W. said that she and Y.Y. became effectively separated in March or April 2012. Although they remained living in the same home, Y.Y. slept in one bedroom and D.W. was in a separate bedroom with the daughters. D.W. said that she and Y.Y. had stopped communicating. When Y.Y. left the home, he would lock his bedroom door.

[22] Y.Y. also said the parties separated in 2012 or 2013.

[23] During this time, Y.Y. continued to pay the living expenses and rent. D.W. would cook for the family but Y.Y. would not eat the food and made his own. D.W. said they still spoke but there was no emotion in Y.Y.’s voice.

[24] In January or February 2015, the family moved to a new home on Oben Street in Vancouver, B.C. Once again, Y.Y. had his own bedroom while D.W. slept in a different bedroom with the daughters.

[25] In February 2015, Y.Y.’s parents came from China to stay with the family.

[26] D.W. said that while they were living at the Oben Street address, Y.Y. spent no time with the children and did not talk to them. However, Y.Y. said that every day he or his mother would take the children to school. When his work allowed him, he would pick up the daughters from school before returning to work. He said he talked to the children every day and played with them, although he agreed that he worked late hours and so his time with the children was limited. He said that he took his daughters to places such as the beaches near UBC or the Abbotsford Zoo.

[27] Y.Y. said that D.W. was already working when they moved to the Oben Street home. He said she worked three to four times a week. During this time, either he or his mother would take the children to school and either he or his mother would pick them up from school.

[28] On August 21, 2016, Y.Y. and his parents moved out of the Oben Street home. D.W. said this happened without any prior warning. D.W. said she did not know where Y.Y. went to until April 2017 when she discovered that Y.Y. was living in Surrey, B.C.

[29] When Y.Y. left, D.W. learned from the landlord that the lease on the Oben Street home had been cancelled. D.W. and the daughters had to find a new home as of September 1, 2016. D.W. said that she made some 300 to 400 phone calls before she found a new home on Anzio Drive in Vancouver, B.C. She and the daughters moved there on September 1, 2016.

[30] D.W. said that Y.Y. did not have any contact with the daughters until December 2016. She said that this visit was arranged when Y.Y. contacted J.S.Y. directly. D.W. also said that sometimes Y.Y. waited to see the daughters after school and that he did so once or twice a week.

[31] D.W. said that she has had to encourage her daughters to see Y.Y. She also felt that more visits by Y.Y. with the children would be fine so long as it did not interfere with their schooling.

[32] Y.Y. said that he purchased a phone for J.S.Y. and they communicated by way of text messages. Y.Y. also went to his children’s school to see them. He said that these visits were short.

[33] Y.Y. said he started to have longer visits with his daughters in October or November 2016, after his lawyer sent D.W. a letter asking that Y.Y. have more time with the children.

[34] In May 2017, D.W. and the children moved to their current home on Worthington Drive in Vancouver, B.C.

[35] Y.Y. currently resides in the Newton area of Surrey, B.C.

Prior Court Orders or Agreements

[36] On June 19, 2017, the Honourable Judge Wingham made an order with the agreement of D.W. and Y.Y. that Y.Y. be able to spend time with the children on Saturdays from 9:00 a.m. to 6:00 p.m. Y.Y.’s income was stated to be $28,000.00 and he was required to pay D.W. $432.00 a month starting June 15, 2017 to help support the children.

[37] On August 16, 2017, the Honourable Judge MacLean changed Judge Wingham’s order to say that Y.Y. would have time with the children every second weekend from Saturday 9:00 a.m. to Sunday 6:00 p.m., with further time on every other Tuesday from 5:45 p.m. to 9:00 p.m.

[38] The parties then agreed to change the Saturday overnight visits so that Y.Y. now has time with the children every other Friday starting from after school to Saturday 6:00 p.m. The Tuesday night visits still continue.

The Position of D.W.

[39] D.W. has agreed to a number of matters.

[40] So long as Y.Y. and the children remain in Canada, D.W. agreed to an equal sharing of summer holidays, winter holidays, and spring break holidays with Y.Y.

[41] D.W. did not agree to any change in the weekday parenting time schedule which is currently Tuesday evenings. She was concerned that increased weekday parenting time for Y.Y. may affect the schooling of the children. D.W. said she would agree that the Friday overnight visits with the children could occur every week rather than every other week.

[42] D.W. did not agree to Y.Y. taking the children for a holiday in China.

[43] D.W. agreed that Y.Y. should be involved in making decisions about where the children go to school, any medical procedures, and whether the children should live in Canada or China. She said that the children must be able to give their opinions on such matters. D.W. agreed that after listening to the children’s opinions, the parents need to make the decisions together.

The Position of Y.Y.

[44] Because Y.Y. lives in Surrey, Y.Y. said he could take his children to school in Vancouver but he was concerned about them being late. Y.Y. preferred to have more time on the weekend seeing the children.

[45] Y.Y. also wanted to share school holidays equally.

[46] Y.Y. was concerned about allowing D.W. to take the children to China. He felt that D.W.’s hometown, Yichun, did not have as good of an environment as his home in Guangzhou. He said that his parents have three houses in Guangzhou and he felt the children would be more comfortable visiting Guangzhou rather than Yichun. Despite these concerns, Y.Y. said that D.W. should be able to take the children to China so long as he could also take them to China.

[47] Y.Y. also asked to share equally the school professional development days.

[48] Y.Y. also would like to take the children for a short visit to Bellingham, Washington.

The Law

[49] The governing law in this matter is called the Family Law Act. The Act states that when the court makes a decision about guardianship, parental responsibilities and parenting time, the court must only consider the best interests of the children. Other matters, such as whether or not the parents are divorced or whether one parent left the family home, are not important unless they have some effect on the best interests of the children.

[50] Upon hearing the evidence, it is clear to me that both parents love their children and only want what is best for them. Both parents want to be involved with the children, to raise them, and to help them succeed in life.

[51] I am of the view that it is in the best interests of the children that both parents share in the responsibility of raising the children.

[52] I am also of the view that an increase in Y.Y.’s parenting time with the children will only be beneficial to them. Based on that, I will be making a number of court orders which I will describe below.

Guardianship

[53] A person is considered a “guardian” under the Family Law Act if he or she falls within the definition set out in s. 39 of the Act. Section 39(1) of the Act says:

While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

[54] There is no dispute that Y.Y. and D.W. are the parents of the children and that they lived together with the children. Both Y.Y. and D.W. are “guardians” as defined by the Family Law Act. I will confirm this by making the following order:

This Court is satisfied that D.W. and Y.Y. are the guardians of the children J.S.Y., born [omitted for publishing], and E.J.J.Y., born [omitted for publishing], pursuant to s. 39(3) of the Family Law Act.

Parental Responsibilities

[55] Both parents agree that they should be making decisions together about the care and upbringing of the children. The parental responsibilities, or the duty to raise the children, will be shared by Y.Y. and D.W. and I will make a court order setting this out. The formal wording of the order will state as follows:

Under s. 40(2) of the Family Law Act, the guardians will share equally all parental responsibilities for the children, including but not limited to the following:

a) making day to day decisions affecting the children and having day to day care, control and supervision of the children;

b) making decisions about where the children will reside;

c) making decisions respecting with whom the children will live and associate

d) making decisions respecting the children's education and participation in extracurricular activities, including the nature, extent and location;

e) making decisions respecting the children's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the children;

g) applying for a passport, licence, permit, benefit, privilege or other thing for the children;

h) giving, refusing or withdrawing consent for the children, if consent is required;

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

j) requesting and receiving from third parties health, education or other information respecting the children;

k) subject to any applicable provincial legislation;

i. starting, defending, compromising or settling any proceeding relating to the children; and

ii. identifying, advancing and protecting the children's legal and financial interests;

l) exercising any other responsibilities reasonably necessary to nurture the children's development.

Parenting Time

[56] Y.Y. and D.W. also agree that there should be an increase in the time that Y.Y. spends with the children, including sharing various holidays or times when school is not in session. I will make an order to allow this and I will set out the specific times that will be shared by the parents.

[57] My order will be as follows:

The annual school winter break holidays, which include the Christmas holidays, will be shared equally between the guardians as follows:

a) Starting in December 2018, D.W. will have parenting time with the children for the first half of the school winter break holidays and Y.Y. will have parenting time for the second half of the school winter break holidays.

b) Starting in December 2019, Y.Y. will have parenting time with the children for the first half of the school winter break holidays and D.W. will have parenting time for the second half of the school winter break holidays.

c) This parenting time schedule will continue to alternate each year unless the guardians agree to a different schedule or the court orders a change in the schedule.

The annual school spring break holidays will be shared equally between the guardians as follows:

a) In 2018, Y.Y. will have parenting time with the children for the first half of the spring break holidays and D.W. will have parenting time for the second half of the school spring break holidays.

b) In 2019, D.W. will have parenting time with the children for the first half of the school spring break holidays and Y.Y. will have parenting time for the second half of the school spring break holidays.

c) This parenting time schedule will continue to alternate each year unless the guardians agree to a different schedule or the court orders a change in the schedule.

The annual school summer holidays will be shared equally between the guardians as follows:

a) Starting in 2018, Y.Y. will have parenting time with the children from the first day of the school summer holidays up to and including July 15, and from August 1 to 15 of that year.

b) Starting in 2018, D.W. will have parenting time with the children from July 16 to July 31, and from August 16 up to and including Labour Day.

c) Starting in 2019, D.W. will have parenting time with the children from the first day of the school summer holidays up to and including July 15, and from August 1 to 15 of that year.

d) Starting in 2019, Y.Y. will have parenting time with the children from July 16 to July 31, and from August 16 up to and including Labour Day.

e) This arrangement will continue to alternate each following year unless the guardians agree to a different schedule or the court orders a change in the schedule.

The annual Easter Holidays will be shared equally between the guardians as follows:

a) Starting in 2018, D.W. will have parenting time with the children from Thursday after school until the following Saturday at 5:00 p.m.

b) Starting in 2018, Y.Y. have parenting time with the children from Saturday at 5:00 p.m. until the start of school on the following Tuesday.

c) Starting in 2019, Y.Y. will have parenting time with the children from Thursday after school until the following Saturday at 5:00 p.m.

d) Starting in 2019, D.W. have parenting time with the children from Saturday at 5:00 p.m. until the start of school on the following Tuesday.

e) This arrangement will continue to alternate each following year unless the guardians agree to a different schedule or the court orders a change in the schedule.

Y.Y. will have parenting time with the children on Father’s Day and D.W. will have parenting time with the children on Mother’s Day, from 9:00 a.m. to 7:00 p.m., notwithstanding that the other guardian is entitled to parenting time on that date.

Y.Y. and D.W. shall share parenting time equally on any other days where the children’s school is closed, such as any scheduled school Administrative Days or Professional Development Days, as well as any statutory holidays including B.C. Family Day, Victoria Day, Thanksgiving Day and Remembrance Day, as follows:

a) Commencing on the first such day when school is closed, Y.Y. will have parenting time with the children from 9:00 a.m. to 7:00 p.m.

b) D.W. will have parenting time with the children from 9:00 a.m. to 7:00 p.m. on the next such day that school is closed.

c) This arrangement will continue to alternate each following day that school is closed unless the guardians agree to a different schedule or the court orders a change in the schedule.

d) This schedule does not affect the sharing of the school winter break holidays, school spring break holidays, school summer holidays or Easter holidays.

Chinese Holidays

[58] During her evidence D.W. made mention that Chinese New Year was a special time for her family. I am prepared to take judicial notice of the fact that there are certain occasions that are special to many persons of Chinese descent. In my view, it would be unfair to the parties to ignore their cultural upbringing and those occasions that may be culturally significant to them. With that in mind, I will make specific provisions for the sharing of Chinese New Year’s Day and the Mid-Autumn Festival or more specifically Mid-Autumn Day. I will order that D.W. and Y.Y. alternate spending time with the children on these dates.

[59] My order is as follows:

The guardians shall alternate spending Chinese New Year’s Day and Mid-Autumn Day with the children.

Commencing in 2019, Y.Y. shall have parenting time with the children on Chinese New Year’s Day and D.W. shall have parenting time with the children on Mid-Autumn Day, and this shall continue in the year 2021 and every second year after.

Commencing in 2020, D.W. shall have parenting time with the children on Chinese New Year’s Day and Y.Y. shall have parenting time with the children on Mid-Autumn Day and this shall continue in the year 2022 and every second year after.

The parenting time schedule during Chinese New Year’s Day and Mid-Autumn Day shall be from 9:00 a.m. to 9:00 p.m., unless that day falls upon a school day in which case it will be from after school until 9:00 p.m.

Travel outside British Columbia

[60] Where Y.Y. and D.W. disagree is over the right to take the children to China. Y.Y. also asked to be able to take the children to Bellingham, but D.W. was never asked if she agreed to this.

[61] I have decided that if either parent wishes to take the children to China, or even outside British Columbia, then any travel plans need to be provided to the other parent for prior approval. If the parties cannot agree, then they will have to come back to court for a judge to decide. I think it is important for both parents to be given details of any proposed trip before the parents can consider any such trip.

[62] My order about travel with the children outside British Columbia is as follows:

Neither guardian shall remove the children from the jurisdiction of British Columbia without the prior written consent of the other guardian or the further order of this court.

If either guardian wishes to take the children outside of British Columbia, that guardian must provide the other guardian at least 30 days before any planned trip with a written statement setting out the proposed dates of travel, and the addresses and telephone numbers of where the children will stay during the trip, and any approval of the trip must be given in writing.

If an agreement cannot be reached, a guardian may apply to court to seek permission to travel with the children outside British Columbia.

Communications

[63] In order to discuss how the children will be raised, the parents will need to communicate with each other. However, in case there are any problems communicating I will order that the communications be in writing if that is requested by either parent. My order is as follows:

The guardians may contact each other directly or indirectly to discuss any issues regarding the children, including any changes to the parenting time schedule, but either guardian may advise the other in writing if he or she wishes for all further communications to be in writing, including text messages or email, except in the case of any emergencies.

Child Support

[64] In Canada, the amount of child support payable is determined with reference to the Child Support Guidelines. These Guidelines are a law that sets out the amount of child support payable based on the number of children and a parent’s income.

[65] The support order made by Judge Wingham on June 19, 2017 in the amount of $432.00 a month was made according to the Child Support Guidelines in effect at the time. An updated Child Support Guidelines came into effect on November 22, 2017, which increased the monthly amount payable for child support. Based on an income of $28,000, for two children the child support payable under the new Child Support Guidelines is $447.00 a month.

[66] One of the important questions a court must look at when deciding the amount of child support payable is to decide what is a person’s income. The law states that a person’s income is not simply what the person earns, but also what a person can earn if that person is making every reasonable effort to earn income.

[67] Y.Y. provided the court with two Financial Statement documents.

[68] Y.Y.’s first Financial Statement was given to the court on May 5, 2017. Y.Y. says in this Financial Statement that he is self-employed and he operates a business called Higo Enterprise. He says that his annual income is $28,000.00. Y.Y. also said that he had annual expenses totaling $29,468.00 and that he had a CIBC line of credit debt of $1,000.00.

[69] Y.Y.’s second Financial Statement was given to the court on February 1, 2018. He now states that his annual income is $10,000.00. Y.Y.’s annual expenses now total $33,072.00. The amount of the expenses has increased from the first Financial Statement because Y.Y. has now added in a telephone expense of $1,080.00, and he has increased his annual costs for toiletries and cosmetics to $600.00 from $100.00. Y.Y. has also included as an expense annual child support payments of $5,184.00 ($432.00 x 12 months).

[70] There were two other changes in the second Financial Statement. The CIBC line of credit debt increased to $2,000.00 from $1,000.00. The second Financial Statement also now refers to a loan from Y.Y.’s mother in the amount of $18,000.00.

[71] No documents were provided to confirm that either of these debts exists.

[72] In the past Y.Y. did subcontract work for OK Contracting Ltd. This involved the making and installing of countertops and the polishing, lifting and cutting of stones. In August 2017, OK Contracting Ltd. began to receive less purchase orders and eventually the company stopped its production work. That left Y.Y. without any more work from OK Contracting. Y.Y. has found other work through friends but he says his business has been losing money since August 2017.

[73] Y.Y. hopes to obtain subcontract work or regular employment in the future and he named two companies where he has looked for work. He is also considering working as a delivery driver, although he did not say that he has applied for any driving jobs.

[74] Y.Y. also testified about a claim of $7,650.00 by the Canadian Government for repayment of Canada Child Benefit. Y.Y. says that these monies were never received by him and he cannot afford to repay the money. The debt claim is referred to in a Canada Revenue Agency document dated August 18, 2017, but is not listed as a debt in the second Financial Statement signed by Y.Y. on January 25, 2018.

[75] The second Financial Statement may set out income as $10,000.00, but that does not accurately represent what Y.Y. actually earned in the year 2017. The sales records for Higo Enterprise for the period January 1 to June 30, 2017 and attached to the second Financial Statement total $23,918.03. Y.Y. has given to the court an income statement for Higo Enterprises for the period August 1 to December 31, 2017 showing sales of $11,818.18. These records total $35,736.21, and the average monthly sales revenue is $3,248.75.

[76] No sales records were given to the court for the month of July 2017. If I add in a further month of average sales of $3,248.75, I calculate the gross sales for 2017 at $38,984.96.

[77] I realize that Y.Y. operates a business and that the Canada Revenue Agency allows him to deduct certain expenses from his income to arrive at an income amount for which he is taxed. However, certain deductions that may be allowed for tax purposes are not allowed when a court must determine what income is or should be available to pay child support.

[78] For instance, one allowable tax deduction is amortization, or the depreciation of certain assets or equipment. This is not an actual annual expenditure and so this deduction should be added back into income when calculating how much money is available to pay child support.

[79] I also see no reason for a deduction for meals and entertainment. If Y.Y. were a regular employee he could not make such a deduction.

[80] Y.Y. has also deducted wages. I have no evidence that Higo Enterprises employed anyone other than Mr. Higo and so this is an amount that cannot be deducted from income.

[81] The business has also deducted two-thirds of Y.Y.’s telephone expenses as a business expense. Given the nature of Y.Y.’s work as a subcontractor working on countertops and stonework, I fail to understand why two-thirds of the phone costs are a proper deduction when calculating income for child support purposes. Y.Y. is not a salesperson who must be in constant contact with clients as part of his business.

[82] Likewise, an employee could not deduct items such as accounting fees, office or motor vehicle expenses. I see no reason why a person operating a business should be allowed those deductions when calculating income for child support purposes.

[83] I also recognize that with the loss of the OK Contracting work, Y.Y. must make efforts to seek other sources of income. The work went into decline starting in August 2017 and yet Y.Y. seems to have only contacted two other companies for work. Y.Y. did not give any information about other attempts to find work or employment.

[84] As I have said, when calculating income for child support purposes, a court must look at not only what a person earns but what a person could earn.

[85] If a person has not made reasonable efforts to maximize his or her income, the court can still make an order based on an amount of income that the court thinks the person should earn. This is referred to an “imputing income”.

[86] Taking into account the factors I have already referred to, I will impute income to Y.Y. at $28,000.00, the same as that set out in Judge Wingham’s order. Child support will be set at $447.00 a month under the current Child Support Guidelines.

Child Support Start Date

[87] D.W. asks that the child support commence as of September 1, 2016, the date that Y.Y. left the Oben Street home.

[88] There is specific case law that sets out the factors I have to look at to decide if child support should start on a date earlier than when a court application is filed. This is commonly referred to as a “retroactive order” of support. The most well known of these court cases is described as D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 SCR 231, 2006 SCC 37. These are decisions of the Supreme Court of Canada, which is the highest court in Canada. As such, I am required to follow this court decision.

[89] The Supreme Court of Canada set out various factors I must look at to decide if there should be a retroactive order for support. If I make such an order, then I also have to decide when the support should start. The Supreme Court of Canada went on to say that it should be when the person being asked to pay support, in this case Y.Y., had “effective notice” that child support should be paid. Effective notice means when Y.Y. knew or should have known of the request for child support.

[90] D.W. said that she had no contact with Y.Y. after he left the Oben Street home. D.W. did not contact Y.Y. to ask for child support. There was no evidence that Y.Y. was aware of this need. The earliest date that Y.Y. should have known that child support was being asked for was when he received D.W.’s court application.

[91] Another factor I have to consider is whether a retroactive support order will cause a hardship on Y.Y. If I am satisfied this will occur then I can adjust the amount of any retroactive support.

[92] Y.Y. has given evidence of a reduced income. He says he owes money to CIBC and his mother even though he has not supplied proof of this. There is also the claim for repayment by the Canada Revenue Agency. Y.Y.’s Financial Statement does not show he has any savings. He does not seem to have any ability at this time to pay any retroactive support. Given this, I will not order that child support be payable earlier than June 15, 2017, the date that Judge Wingham ordered the support payments to start.

[93] The order I will make is to require payment of child support of $447.00 a month starting March 15, 2018 and continuing on the 15th day of each following month.

[94] The order of Judge Wingham requiring payment of child support of $432.00 a month stays in effect until March 15, 2018.

[95] My order is as follows:

Y.Y. is found to be a resident of British Columbia and is imputed to have a gross annual income of $28,000.00.

Y.Y. will pay to D.W. the sum of $447.00 a month commencing March 15, 2018 and continuing on the 15th day of each month thereafter so long as the children of their relationship, J.S.Y., born [omitted for publication], and E.J.J.Y., born [omitted for publication], remain eligible under the Family Law Act.

Agreement to Change this Order

[96] Y.Y. and D.W. are free to make any changes to my court order by written agreement. I will order as follows:

The guardians are at liberty to agree in writing to vary any terms of this order.

Summary

[97] My order is as follows:

Upon the Court being advised that the name and birth date of each child is as follows:

J.S.Y., born [omitted for publication], and E.J.J.Y., born [omitted for publication].

Guardianship

1) This Court is satisfied that the parties, D.W. and Y.Y., are the guardians of the children J.S.Y., born [omitted for publishing], and E.J.J.Y., born [omitted for publishing], pursuant to s. 39(3) of the Family Law Act.

Parental Responsibilities

2) Under s. 40(2) of the Family Law Act, the guardians will share equally all parental responsibilities for the children, including but not limited to the following:

a) making day to day decisions affecting the children and having day to day care, control and supervision of the children;

b) making decisions about where the children will reside;

c) making decisions respecting with whom the children will live and associate

d) making decisions respecting the children's education and participation in extracurricular activities, including the nature, extent and location;

e) making decisions respecting the children's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

f) subject to s. 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the children;

g) applying for a passport, licence, permit, benefit, privilege or other thing for the children;

h) giving, refusing or withdrawing consent for the children, if consent is required;

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

j) requesting and receiving from third parties health, education or other information respecting the children;

k) subject to any applicable provincial legislation;

i. Starting, defending, compromising or settling any proceeding relating to the children; and

ii. Identifying, advancing and protecting the children's legal and financial interests;

l) exercising any other responsibilities reasonably necessary to nurture the children's development.

Parenting Time

3) The annual school winter break holidays, which include the Christmas holidays, will be shared equally between the parties as follows:

c) This parenting time schedule will continue to alternate each year unless the parties agree to a different schedule or the court orders a change in the schedule.

4) The annual school spring break holidays will be shared equally between the parties as follows:

a) In 2018, Y.Y. will have parenting time with the children for the first half of the spring break holidays and D.W. will have parenting time for the second half of the school spring break holidays.

c) This parenting time schedule will continue to alternate each year unless the parties agree to a different schedule or the court orders a change in the schedule.

5) The annual school summer holidays will be shared equally between the parties as follows:

a) Starting in 2018, Y.Y. will have parenting time with the children from the first day of the school summer holidays up to and including July 15, and from August 1 to 15 of that year.

b) Starting in 2018, D.W. will have parenting time with the children from July 16 to July 31, and from August 16 up to and including Labour Day.

c) Starting in 2019, D.W. will have parenting time with the children from the first day of the school summer holidays up to and including July 15, and from August 1 to 15 of that year.

d) Starting in 2019, Y.Y. will have parenting time with the children from July 16 to July 31, and from August 16 up to and including Labour Day.

e) This arrangement will continue to alternate each following year unless the parties agree to a different schedule or the court orders a change in the schedule.

6) The annual Easter Holidays will be shared equally between the parties as follows:

a) Starting in 2018, D.W. will have parenting time with the children from Thursday after school until the following Saturday at 5:00 p.m.

b) Starting in 2018, Y.Y. have parenting time with the children from Saturday at 5:00 p.m. until the start of school on the following Tuesday.

c) Starting in 2019, Y.Y. will have parenting time with the children from Thursday after school until the following Saturday at 5:00 p.m.

d) Starting in 2019, D.W. have parenting time with the children from Saturday at 5:00 p.m. until the start of school on the following Tuesday.

e) This arrangement will continue to alternate each following year unless the parties agree to a different schedule or the court orders a change in the schedule.

7) Y.Y. will have parenting time with the children on Father’s Day and D.W. will have parenting time with the children on Mother’s Day, from 9:00 a.m. to 7:00 p.m., notwithstanding that that the other parent is entitled to parenting time on that date.

8) Y.Y. and D.W. shall share parenting time equally any other days where the children’s school is closed, such as any scheduled school Administrative Days or Professional Development Days, as well as any statutory holidays including B.C. Family Day, Victoria Day, Thanksgiving Day and Remembrance Day, as follows:

a) Commencing on the first such day when school is closed, Y.Y. will have parenting time with the children from 9:00 a.m. to 7:00 p.m.

b) D.W. will have parenting time with the children from 9:00 a.m. to 7:00 p.m. on the next such day that school is closed.

c) This arrangement will continue to alternate each following day that school is closed unless the parties agree to a different schedule or the court orders a change in the schedule.

d) This schedule does not affect the sharing of the school winter break holidays, school spring break holidays, summer holidays or Easter holidays.

9) The parties shall alternate Chinese New Year’s Day and Mid-Autumn Day with the children as follows:

a) Commencing in 2019, Y.Y. shall have parenting time with the children on Chinese New Year’s Day and D.W. shall have parenting time with the children on Mid-Autumn Day, and this shall continue in the year 2021 and every second year after.

b) Commencing in 2020, D.W. shall have parenting time with the children on Chinese New Year’s Day and Y.Y. shall have parenting time with the children on Mid-Autumn Day and this shall continue in the year 2022 and every second year after.

c) The parenting time schedule during Chinese New Year’s Day and Mid-Autumn Day shall be from 9:00 a.m. to 9:00 p.m., unless that day falls upon a school day in which case it will be from after school until 9:00 p.m.

10) Subject to the parenting time schedule as set out above, Y.Y. shall have parenting time with the children as follows:

a) Every Friday from after school until the following Saturday at 6:00 p.m.

b) Every Tuesday from 5:45 p.m. to 9:00 p.m.

Travel outside British Columbia

11) Neither guardian shall remove the children from the jurisdiction of British Columbia without the prior written consent of the other guardian or the further order of this court.

12) If either guardian wishes to take the children outside of British Columbia, that guardian must provide the other guardian at least 30 days before any planned trip with a written statement setting out the proposed dates of travel, and the addresses and telephone numbers of where the children will stay during the trip, and any approval of the trip must be given in writing.

13) If an agreement cannot be reached, a guardian may apply to court to seek permission to travel with the children outside British Columbia.

Communications

14) The guardians may contact each other directly or indirectly to discuss any issues regarding the children, including any changes to the parenting time schedule, but either guardian may advise the other in writing if he or she wishes for all further communications to be in writing, including text messages or email, except in the case of any emergencies.

Income and Child Support

15) Y.Y. is found to be a resident of British Columbia and is imputed to have a gross annual income of $28,000.00.

16) Y.Y. will pay to D.W. the sum of $447.00 a month commencing March 15, 2018 and continuing on the 15th day of each month thereafter so long as the children of their relationship, J.S.Y., born [omitted for publishing], and E.J.J.Y., born [omitted for publishing], remain eligible under the Family Law Act.

Agreement to Vary

17) The parties are at liberty to agree in writing to vary any terms of this order.

[98] Counsel for Y.Y. will draft this order. As D.W. is not a lawyer there is no requirement for her to sign the form of the order. I will review the draft order before it is filed with the court.

_________________________

The Honourable W. Lee

Provincial Court Judge

CORRIGENDUM – Released March 15, 2018

[1] On February 16, 2018 I issued my reasons for judgment in this matter.

[2] Counsel for Y.Y. has pointed out that I did not make an order for parenting time during non-holiday periods. That was a matter I had forgotten to set out in my earlier written decision.

[3] At the time of the trial, D.W. was seeing the children every other Friday from after school to Saturday at 6:00 p.m., as well as Tuesday from 5:45 p.m. to 9:00 p.m.

[4] D.W. asked for more parenting time and Y.Y. agreed that the weekend visits could now be every weekend.

[5] I will make such an order.

[6] This order will be inserted as paragraph 10 of the comprehensive order set out in my earlier Reasons for Judgment under the heading “Parenting Time”. The specific term will read as follows:

Subject to the parenting time schedule as set out above, D.W. shall have parenting time with the children as follows:

a) Every Friday from after school until the following Saturday at 6:00 p.m.

b) Every Tuesday from 5:45 p.m. to 9:00 p.m.

[7] The revised order will now read as follows:

Guardianship

Parental Responsibilities

2) Under s. 40(2) of the Family Law Act, the guardians will share equally all parental responsibilities for the children, including but not limited to the following:

m) making day to day decisions affecting the children and having day to day care, control and supervision of the children;

n) making decisions about where the children will reside;

o) making decisions respecting with whom the children will live and associate

p) making decisions respecting the children's education and participation in extracurricular activities, including the nature, extent and location;

q) making decisions respecting the children's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

r) subject to s. 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the children;

s) applying for a passport, licence, permit, benefit, privilege or other thing for the children;

t) giving, refusing or withdrawing consent for the children, if consent is required;

u) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

v) requesting and receiving from third parties health, education or other information respecting the children;

w) subject to any applicable provincial legislation;

iii. Starting, defending, compromising or settling any proceeding relating to the children; and

iv. Identifying, advancing and protecting the children's legal and financial interests;

x) exercising any other responsibilities reasonably necessary to nurture the children's development.

Parenting Time

3) The annual school winter break holidays, which include the Christmas holidays, will be shared equally between the parties as follows:

d) Starting in December 2018, D.W. will have parenting time with the children for the first half of the school winter break holidays and Y.Y. will have parenting time for the second half of the school winter break holidays.

e) Starting in December 2019, Y.Y. will have parenting time with the children for the first half of the school winter break holidays and D.W. will have parenting time for the second half of the school winter break holidays.

f) This parenting time schedule will continue to alternate each year unless the parties agree to a different schedule or the court orders a change in the schedule.

4) The annual school spring break holidays will be shared equally between the parties as follows:

d) In 2018, Y.Y. will have parenting time with the children for the first half of the spring break holidays and D.W. will have parenting time for the second half of the school spring break holidays.

e) In 2019, D.W. will have parenting time with the children for the first half of the school spring break holidays and Y.Y. will have parenting time for the second half of the school spring break holidays.

f) This parenting time schedule will continue to alternate each year unless the parties agree to a different schedule or the court orders a change in the schedule.

5) The annual school summer holidays will be shared equally between the parties as follows:

f) Starting in 2018, Y.Y. will have parenting time with the children from the first day of the school summer holidays up to and including July 15, and from August 1 to 15 of that year.

g) Starting in 2018, D.W. will have parenting time with the children from July 16 to July 31, and from August 16 up to and including Labour Day.

h) Starting in 2019, D.W. will have parenting time with the children from the first day of the school summer holidays up to and including July 15, and from August 1 to 15 of that year.

i) Starting in 2019, Y.Y. will have parenting time with the children from July 16 to July 31, and from August 16 up to and including Labour Day.

j) This arrangement will continue to alternate each following year unless the parties agree to a different schedule or the court orders a change in the schedule.

6) The annual Easter Holidays will be shared equally between the parties as follows:

f) Starting in 2018, D.W. will have parenting time with the children from Thursday after school until the following Saturday at 5:00 p.m.

g) Starting in 2018, Y.Y. have parenting time with the children from Saturday at 5:00 p.m. until the start of school on the following Tuesday.

h) Starting in 2019, Y.Y. will have parenting time with the children from Thursday after school until the following Saturday at 5:00 p.m.

i) Starting in 2019, D.W. have parenting time with the children from Saturday at 5:00 p.m. until the start of school on the following Tuesday.

j) This arrangement will continue to alternate each following year unless the parties agree to a different schedule or the court orders a change in the schedule.

e) Commencing on the first such day when school is closed, Y.Y. will have parenting time with the children from 9:00 a.m. to 7:00 p.m.

f) D.W. will have parenting time with the children from 9:00 a.m. to 7:00 p.m. on the next such day that school is closed.

g) This arrangement will continue to alternate each following day that school is closed unless the parties agree to a different schedule or the court orders a change in the schedule.

h) This schedule does not affect the sharing of the school winter break holidays, school spring break holidays, summer holidays or Easter holidays.

9) The parties shall alternate Chinese New Year’s Day and Mid-Autumn Day with the children as follows:

d) Commencing in 2019, Y.Y. shall have parenting time with the children on Chinese New Year’s Day and D.W. shall have parenting time with the children on Mid-Autumn Day, and this shall continue in the year 2021 and every second year after.

e) Commencing in 2020, D.W. shall have parenting time with the children on Chinese New Year’s Day and Y.Y. shall have parenting time with the children on Mid-Autumn Day and this shall continue in the year 2022 and every second year after.

f) The parenting time schedule during Chinese New Year’s Day and Mid-Autumn Day shall be from 9:00 a.m. to 9:00 p.m., unless that day falls upon a school day in which case it will be from after school until 9:00 p.m.

10) Subject to the parenting time schedule as set out above, D.W. shall have parenting time with the children as follows:

c) Every Friday from after school until the following Saturday at 6:00 p.m.

d) Every Tuesday from 5:45 p.m. to 9:00 p.m.

Travel outside British Columbia

11) Neither guardian shall remove the children from the jurisdiction of British Columbia without the prior written consent of the other guardian or the further order of this court.

13) If an agreement cannot be reached, a guardian may apply to court to seek permission to travel with the children outside British Columbia.

Communications

Income and Child Support

15) Y.Y. is found to be a resident of British Columbia and is imputed to have a gross annual income of $28,000.00.

Agreement to Vary

17) The parties are at liberty to agree in writing to vary any terms of this order.

[8] My Reasons for Judgment are amended accordingly.

CORRIGENDUM – Released April 26, 2018

[1] On March 15, 2018 I issued a Corrigendum to my Reasons for Judgment dated February 16, 2018 to add in a further term to my order as follows:

Subject to the parenting time schedule as set out above, D.W. shall have parenting time with the children as follows:

a) Every Friday from after school until the following Saturday at 6:00 p.m.

b) Every Tuesday from 5:45 p.m. to 9:00 p.m.

[2] I have inadvertently mixed up the names of the parents. This term of my order should have read as follows:

Subject to the parenting time schedule as set out above, Y.Y. shall have parenting time with the children as follows:

a) Every Friday from after school until the following Saturday at 6:00 p.m.

b) Every Tuesday from 5:45 p.m. to 9:00 p.m.

[3] My order is amended accordingly.

[4] In the first Corrigendum, I also made a mistake in referring to D.W. as “Mr. W” and to Y.Y. as “Ms. Y”. D.W. should have been referred to as Ms. W and Y.Y. should have been referred to as Mr. Y. It was Mr. Y who requested additional parenting time and it was Ms. W who agreed to it.

[5] I apologize to the parties for my error and any resulting confusion. I also thank counsel for Mr. Y for bringing this to my attention.